By Leslie King O’Neal
“They’re not here in good faith!” is an accusation mediators sometimes hear. But what does “good faith” mean in mediation? Is it the mediator’s role to decide if parties are acting in “good faith?” Should mediators report parties who violate “good faith” requirements to the court? Attorneys, mediators, judges and legal scholars have grappled with these questions since court-annexed compulsory mediation became widely used in the 1980’s.i
The goal of court-annexed mediation is to promote settlement of disputes, thus reducing the court’s trial docket. By ordering parties to mediate in “good faith” courts expect parties to engage in meaningful negotiations. Of course, this does not always occur. Thus, some statutes, rules and court orders provide for sanctions for violating this requirement. Mediators may be obligated to report alleged bad faith conduct to the court. This conflicts with the core values of mediation: party self-determination, mediator impartiality and mediation confidentiality.[ii]
What does “good faith” in mediation mean?
Defining “good faith” in mediation has been difficult for courts and legal scholars. One commentator noted: “[A]t least 22 states and the territory of Guam have such statutory requirements [requiring good faith]. At least 21 federal district courts and 17 state courts have local rules requiring good faith participation. Only one of those . . . includes a definition of “good faith.” [iii] As one court stated, “Good faith” is an intangible and abstract quality with no technical meaning or statutory definition. It encompasses, among other things, an honest belief, the absence of malice and the absence of a design to defraud or to seek an unconscionable advantage.”[iv] Defining “good faith” may be like Justice Stewart’s famous definition of pornography, “[I]n the end, “you know it when you see it.”[v]
Courts faced with motions for sanctions based on alleged violation of good faith requirements “have interpreted good faith narrowly to require compliance with orders to attend mediation, provide pre-mediation memoranda, and, in some cases, produce organizational representatives with sufficient settlement authority.”[vi] Most courts have declined to impose sanctions for conduct related to a party’s mediation tactics, such as not making an offer, not providing requested documents or refusing to negotiate.[vii] In Avril v. Civilmar[viii] the trial court imposed sanctions against defendants for failing to negotiate in good faith because they refused to offer more than $1,000 at mediation. On writ of certiorari, the appellate court reversed, noting “There is no requirement that a party even make an offer at mediation, let alone offer what the opposition wants to settle.”[ix]
Confidentiality and the mediator’s role regarding “good faith”
Confidentiality is a hallmark of mediation and is critical to allow mediators and parties to engage in frank and open discussions in caucus. Rules or court orders requiring mediators to report on a party’s behavior in mediation sessions undermine confidentiality and discourage the candid exchange necessary for successful mediation. Participants must have confidence that statements or positions taken in mediation will not be used against them in later court proceedings. As the ABA Dispute Resolution Section stated, “Requiring mediators to report negotiating behaviors or alleged bad-faith conduct to the court imperils the confidentiality of the mediation process and the public’s trust in it.”[x] Also, such requirements conflict with mediator ethics rules and mediation statutes providing for confidentiality.[xi]
The Uniform Mediation Act (UMA) and the ABA Section of Dispute Resolution agree that mediators’ reports to courts or court administrators regarding anything occurring during mediation should be limited to objective facts, such as whether a party attended mediation.[xii] Section 7(b)(1) [of the UMA], however, does permit disclosure of particular facts, including attendance and whether a settlement was reached. For example, a mediator may report that one party did not attend and another attended only for the first five minutes.
Promoting good faith in mediation
To paraphrase an old saw–you can order parties to go to mediation but you can’t make them mediate in good faith. There is no “one size fits all” approach to promoting good faith in mediation. Professor Lande suggests: (1) collaborative education about mediation; (2) pre-mediation submission of documents and (3) pre-mediation consultation between parties, counsel and the mediator as ways to promote good faith in mediation.[xiii] When parties and their counsel have more information about and involvement in the mediation process ahead of time they may be more engaged and participate in a more meaningful way.
Takeaways
“Good faith” in mediation is difficult to define and difficult to enforce. Requiring the mediator to report on parties’ behavior during mediation creates ethical concerns and undermines the free discussion needed for successful mediation. Most courts will not impose sanctions for parties’ alleged bad faith conduct other than their failure to attend a court-ordered mediation or to bring an authorized representative. Educating parties about the mediation process, exchanging documents before mediation and engaging in pre-mediation discussions with the mediator can promote “good faith” negotiations and lead to more successful mediations.
[i] “Good faith” requirements may be found in contract clauses about mediation, but these usually don’t include mediator reporting requirements as court-annexed mediations do.
[ii] ABA Section of Dispute Resolution, Resolution on Good Faith Requirements for Mediators and Mediation Advocates in Court-Mandated Mediation Programs (August 7, 2004). https://www.americanbar.org/content/dam/aba/administrative/dispute_resolution/dispute_resolution/draftres2.pdf.
[iii] John Lande, Using Dispute System Design Methods to Promote Good Faith Participation in Court-Connected Mediation Programs, 50 UCLA L. Rev. 69, 78-80 (2002).Using Dispute System Design Methods to Promote Good-Faith Participation in Court-Connected Mediation Programs (uclalawreview.org)
[iv] Doyle v. Gordon, 158 N.Y.S.2d 248, 259-60 (Sup. Ct. 1954).
[v] Kimberlee Kovach, Good Faith in Mediation—Requested, Recommended or Required? A New Ethic, 38 S. Tex. L. Rev. 575, 600, citing Jacobellis v. Ohio, 378 U.S. 184, 197 (1964), Stewart, J. concurring.
[vi] Lande, supra, note iii at 83-85.
[vii] Id. at 82-83.
[viii] 605 So.2d 988 (Fla. 4th DCA 1992).https://casetext.com/case/avril-v-civilmar
[ix] Id. at 990.
[x] ABA Section of Dispute Resolution, Resolution on Good Faith Requirements for Mediators and Mediation Advocates in Court-Mandated Mediation Programs (August 7, 2004) https://www.americanbar.org/content/dam/aba/administrative/dispute_resolution/dispute_resolution/draftres2.pdf.
[xi] E.g. Rule 10.360(a) Florida Rules for Certified & Court-Appointed Mediators https://www.supremecourt.flcourts.gov.
[xii] E.g. §7 of the Uniform Mediation Act, Prohibited Mediation Reports https://higherlogicdownload.s3.amazonaws.com/UNIFORMLAWS/571ba947-af50-45c2-ffb9-2322fd87fe The UMA has been adopted by GA, HI, ID, SD, D.C., UT, VT, IA, NJ, OH, WA, IL, NE; See also §44.405(1); Fla. Stat. (2023)(confidentiality of mediation communications). This also complies with §12-1 of the National Standards for Court-Connected Mediation Programs (1992) https://innsofcourt.org.
[xiii] Lande, supra, note iii at 127-132.
